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Will vs. Trust: Understanding the Key Differences

Updated: Feb 21



When it comes to estate planning, the choice between a will and a trust can significantly impact how your assets are managed and distributed. Below,  we'll unravel the nuances of wills and trusts, exploring their definitions, differences, advantages, and potential drawbacks. At Woodbury & Ybarra, we understand the complexities of estate planning and offer expert guidance to help you make informed decisions regarding your assets and legacy.


Preserve your legacy with a will vs trust

What is a Will?

A will, also known as a last will and testament, stands as a fundamental legal document that outlines an individual's wishes regarding the distribution of their assets and the management of their affairs after their passing. This crucial document serves as a blueprint for how one's estate should be handled, offering instructions on asset distribution, appointing guardianship for minor children, and nominating an executor to oversee the will's execution.

At its core, a will specifies who will inherit the deceased person's assets, including real estate, finances, personal belongings, and other possessions. It allows the testator (the person making the will) to designate beneficiaries, whether they be family members, friends, organizations, or charitable causes. Additionally, a will provides the opportunity to appoint a guardian for minor children, ensuring their care and upbringing according to the testator's desires as well as any funeral or burial wishes. 

The process of creating a will involves the testator detailing their intentions regarding asset distribution and appointing an executor responsible for carrying out these instructions after their passing. To ensure the will's validity, it must adhere to legal requirements stipulated by state laws, which typically involve the testator signing the document in the presence of witnesses who also sign to attest the testator's mental capacity and absence of undue influence.

A will, while serving as a crucial tool in estate planning, has limitations. Notably, it typically requires probate, a court-supervised process, to authenticate the will and oversee the distribution of assets. Probate can be time-consuming, expensive, emotionally draining for loved ones,  and may involve public disclosure of the estate's details. However, despite these limitations, a will remains an essential document in safeguarding one's intentions and ensuring the orderly distribution of assets upon their passing.

What is a Trust? 

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A trust is a legal arrangement that allows an individual, the grantor, to transfer assets—such as property, investments, or cash—into the ownership of a separate entity managed by a trustee for the benefit of designated beneficiaries. This arrangement involves three primary parties: the grantor, the trustee, and the beneficiaries, and is governed by a legal document known as the trust agreement.

The grantor initiates the trust by transferring assets into it and outlining specific instructions and terms in the trust agreement. The trustee, appointed by the grantor, takes charge of the trust's assets at a time designated by the grantor and is responsible for managing and distributing these assets according to the trust's provisions and for the benefit of the designated beneficiaries.

Trusts offer various advantages, including asset management, privacy, and flexibility. They allow for the management and distribution of assets during the grantor's lifetime and/or after their passing, potentially bypassing the probate process—a significant distinction from wills. Trusts can offer privacy as they are not subject to probate court proceedings, which are generally public. Additionally, trusts allow for detailed and specific instructions for asset distribution, enabling tailored solutions for diverse family situations and asset management objectives.

There are different types of trusts catering to various purposes. Revocable living trusts provide flexibility during the grantor's lifetime and can be altered or revoked, while irrevocable trusts offer asset protection and potential tax benefits by removing assets from the grantor's estate. Other specialized trusts, such as charitable trusts or special needs trusts, serve philanthropic purposes or provide for individuals with specific needs.

Setting up a trust involves meticulous planning, drafting the trust agreement, properly funding the trust with assets, and selecting trustees and beneficiaries. The complexity and advantages of trusts often make them valuable tools in estate planning, offering a structured approach to manage assets, provide for loved ones, and potentially minimize taxes and bypass probate.


Differences Between a Will and a Trust

The primary differences between a will and a trust lie in their functionality, when they become effective, and how they manage asset distribution and estate matters.

Functionality and Execution:

A will becomes effective upon the individual's passing. It outlines the wishes regarding asset distribution, nominates an executor to oversee estate matters, and may appoint a  guardian for minor children. Wills typically go through probate to ensure the validity of a will and oversee an estate’s distribution.

Trusts can become effective during the grantor's lifetime. They involve the transfer of assets, managed by a trustee for the benefit of specified beneficiaries. Trusts can bypass probate, ensuring privacy and efficient asset transfer. They allow for immediate asset management, potentially providing great continuity.

Asset Distribution and Management:

Wills specify how assets should be distributed after the testator's passing. They allow individuals to designate beneficiaries for their assets and nominate individuals or institutions to manage the estate.

Trusts facilitate ongoing asset management and distribution. Assets transferred into a trust are owned by the trust itself and managed by its trustee. This structure can allow immediate management and potentially continuous management during the grantor's incapacity or following their passing.

Probate and Privacy:

Wills are typically subject to probate, which can be time-consuming, expensive, and public. Probate involves court proceedings to authenticate the will and oversee asset distribution, potentially leading to public disclosure of estate details.

Trusts can often bypass probate, maintaining privacy as they are private agreements. Since they do not go through the probate process, the distribution of assets within a trust are not public.

Understanding these distinctions is crucial in determining the most suitable estate planning tool based on individual needs. While wills offer simplicity, trusts provide flexibility, immediate management, and privacy. Consulting with experienced estate planning professionals, such as Woodbury & Ybarra, can help individuals make informed decisions regarding wills or trusts tailored to their specific needs and goals.


Is a Will or a Trust Better? Pros and Cons of Trust vs Will


pros and cons of a will vs a trust

Some wonder, “Is a trust better than a will?” Determining whether a trust or a will is better depends on individual circumstances, estate planning goals, and preferences. Both documents serve distinct purposes and offer unique advantages, making them valuable tools in estate planning.


Pros of a Will:

Simplicity and Affordability: Wills are generally simpler to create and more affordable upfront compared to trusts. They provide a straightforward way to outline asset distribution and other wishes after one’s passing.

Specific Instructions: Wills can allow individuals to succinctly specify their desires regarding asset distribution, naming beneficiaries, and nominating an executor. They can accommodate simpler estates and basic asset distribution wishes.

Cons of a Will:

Probate Proceedings: Wills typically go through probate, a court-supervised process that can be time-consuming and expensive, potentially lasting several months or even years. Probate can delay asset distribution and may involve legal fees and court costs, reducing the estate's value.

Public Disclosure: Probate proceedings are generally public, meaning the details of the estate, beneficiaries, and asset distribution become part of the public record. This lack of privacy can expose sensitive information to scrutiny.

Pros of a Trust:

Probate Avoidance and Privacy: Trusts can bypass probate, protect assets from creditors once they are transferred into the trust, offer immediate asset management, and potentially avoid the time-consuming and public nature of probate proceedings, not to mention the potential costs. This helps maintain privacy, estate value, and potentially allows  a more timely process. 

Continuous Asset Management: Trusts provide ongoing asset management, potentially offering continuity in managing assets even after the grantor's passing or in the case of their incapacity. They allow for immediate asset management and distribution according to the trust terms.

Cons of a Trust:

Complexity and Cost: Establishing a trust can be more complex and costly compared to creating a will. The process involves legal fees for drafting the trust agreement, funding the trust, and potential ongoing administration fees. The initial expenses for trusts are typically higher than those for wills.

Funding and Maintenance: A trust requires proper funding by transferring assets into the trust's ownership. Failure to adequately fund the trust might render it ineffective. Additionally, ongoing maintenance and management of the trust may be necessary, involving administrative tasks and potential trustee fees.

Choosing Between a Will and a Trust: Who needs a trust instead of a will

For individuals with complex estates, significant assets, or specific needs, a trust may be more suitable due to its flexibility, privacy, and immediate asset management capabilities. However, for simpler estates or individuals seeking a straightforward asset distribution process, a will might suffice.

Ultimately, the decision between a will and a trust hinges on individual needs, estate complexity, and preferences regarding privacy, control, and long-term asset management. Consulting with legal professionals can offer tailored guidance to determine the most appropriate approach based on individual circumstances and objectives.

Costs: Will vs Trust

The costs associated with creating a will versus establishing a trust vary based on factors such as complexity, legal requirements, and the specific services required from legal professionals. Generally, wills tend to be more affordable upfront compared to trusts due to their simpler nature.

The cost of drafting a will can vary based on the complexity of the estate and the legal fees. Basic wills, particularly for individuals with conventional estates and minimal assets, may be relatively inexpensive. However, more complex wills that involve detailed instructions or estate planning strategies may incur higher legal fees.

Trusts typically involve higher initial costs compared to wills due to their intricacy and legal requirements. The complexity of trusts, their varied types, and the need for customization contribute to higher legal fees. Additionally, funding a trust requires transferring assets into the trust's ownership, which may involve additional costs such as property transfer fees, notary fees, or account transfer fees for financial assets.

While wills might be more cost-effective upfront, trusts can offer long-term benefits by potentially avoiding probate and its associated costs, providing immediate asset management, and ensuring privacy. Advice from experienced attorneys can provide clarity on the costs involved and help determine the most suitable approach based on individual estate planning needs.

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Take Action to Keep Your Assets Protected

Choosing between a will and a trust involves careful consideration of individual goals and estate complexities. At Woodbury & Ybarra, our experienced team can guide you through the intricacies of estate planning, helping you decide the best approach for securing your assets and ensuring your intentions are realized. Contact us to see how you can achieve your estate planning goals today!


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